195-07-BZ
CEQR #08-BSA-011M
APPLICANT – Greenberg Traurig by Deirdre A. Carson, for Bond Street Partners LLC (as to lot 64) c/o Convermat, owner.
SUBJECT – Application August 9, 2007 – Variance (§72-21) to allow hotel and retail uses below the floor level of the second story, contrary to use regulations (§42-14(d)(2)). M1-5B zoning district.
PREMISES AFFECTED – 8-12 Bond Street, Northwest corner of Bond and Lafayette Streets, Block 530, Lot 62 & 64, Borough of Manhattan.
COMMUNITY BOARD #2M
APPEARANCES –
For Applicant: Randall Minor.
ACTION OF THE BOARD – Application granted on condition.
THE VOTE TO GRANT –
Affirmative: Chair Srinivasan, Vice Chair Collins, Commissioner Ottley-Brown, Commissioner Hinkson and Commissioner Montanez ...... 5
Negative:...... 0
THE RESOLUTION –
WHEREAS, the decision of the Manhattan Borough Commissioner, dated January 29, 2009, acting on Department of Buildings Application No. 104557221, reads in pertinent part:
“ZR 42-14(D)(2)(B) & (3)(B). Proposed UG 5 & 6 uses below level of second story (i.e. 1st floor & 2 cellar levels) are not permitted in M1-5B ZD;” and
WHEREAS, this is an application under ZR § 72-21, to permit, in an M1-5B zoning district within the NoHo Historic District, the construction of a seven-story 50-room hotel building with hotel and retail uses below the level of the second floor, which is contrary to ZR § 42-14; and
WHEREAS, a public hearing was held on this application on August 11, 2009, after due notice by publication in the City Record, with continued hearings on October 6, 2009, and October 27, 2009, and then to decision on February 9, 2010; and
WHEREAS, the premises and surrounding area had site and neighborhood examinations by Chair Srinivasan, Vice-Chair Collins, Commissioner Hinkson, Commissioner Montanez, and Commissioner Ottley-Brown; and
WHEREAS, Community Board 2, Manhattan, recommends approval of the application, with the following conditions: (1) the second floor courtyard be a primarily planted area not to be used for food and drink service; (2) the physical culture establishment in the cellar not obtain a liquor license; (3) the roof space not obtain a liquor license and not be used for food or beverage service; and (4) no amplified music be located in exterior spaces; and
WHEREAS, the site is located on the northwest corner of the intersection of Bond Street and Lafayette Street, in an M1-5B zoning district within the NoHo Historic District; and
WHEREAS, the site has 60’-3½” of frontage along Bond Street, 100’-6¼” of frontage along Lafayette Street, and a total lot area of 6,471 sq. ft.; and
WHEREAS, the site is occupied by a two-story and mezzanine building, a one-story structure formerly used as an automotive service station, parking, and an advertising sign, all of which will be demolished or replaced; and
WHEREAS, the proposed building will have a floor area of 31,910 sq. ft. (4.93 FAR), an additional 15,259 sq. ft. of floor space located at the cellar and sub-cellar levels, a wall height of 69’-2”, and a total height of 80’-3”; and
WHEREAS, the proposal provides for the following uses: (1) a spa/fitness center and accessory meeting rooms to the hotel use at the sub-cellar level; (2) accessory storage, laundry, offices, and mechanical use at the cellar level; (3) an eating and drinking establishment without entertainment (Use Group 6C) and a hotel lobby at the first floor; (4) a hotel lounge and rooms at the second floor; (5) hotel rooms at the third through sixth floors; and (6) a mechanical room and hotel rooms at the seventh floor; and
WHEREAS, the applicant represents that the proposed spa/fitness center at the sub-cellar level will initially be an amenity only for hotel guests, but that it will eventually be made available to the public through a separate entrance on Lafayette Street, at which point an application will be made pursuant to ZR § 73-36 to operate a physical culture establishment on the site; and
WHEREAS, the applicant states that the proposed Use Group 5 hotel use is permitted as-of-right at and above the level of the second floor, but that the subject variance is required for the proposed hotel and retail uses below the second floor, which are prohibited pursuant to ZR § 42-14; and
WHEREAS, the applicant states that the following are unique physical conditions which create an unnecessary hardship in developing the site in conformance with applicable regulations: (1) poor subsurface soil conditions; (2) the site is adjacent to the Lexington Avenue subway line; and (3) the historic use of the site as an automotive service station has resulted in soil contamination; and
WHEREAS, as to the subsurface soil conditions, the applicant states that the site is burdened by poor soil conditions which require additional excavation, foundation, and underpinning measures; and
WHEREAS, specifically, the applicant submitted a report from its engineering consultant (the “Subsurface Report”) stating that excavation on the site to a depth of 20 feet will be necessary because soil borings indicate the presence of uncontrolled fill and loose sand to that depth throughout much of the site; and
WHEREAS, the applicant represents that even if the owner constructed a building with only one cellar, it would still have to remove the unstable material below the single cellar level from 12 to 20 feet below grade in order to provide a sound subsurface base for the mat foundation; and
WHEREAS, the applicant represents that since the site must be excavated to a depth of 20 feet even for a single cellar level, it is prudent to complete the small amount of additional excavation necessary to provide a sub-cellar level and recoup some of the foundation costs through the additional floor space; and
WHEREAS, according to the Subsurface Report, excavating to a depth of 20 feet necessitates additional removal of fill and sand in the excavation, the installation of deep underpinning to carry the loads of several adjacent buildings, and an excavation support system to brace the adjacent subway; and
WHEREAS, as to the adjacency to the subway, the applicant represents that the eastern boundary of the site coincides with the Lexington Avenue subway line below grade; and
WHEREAS, accordingly, the applicant states that the New York City Transit Authority (“NYCTA”) has requirements for the design and construction of an excavation support system at this location; and
WHEREAS, specifically, the applicant states that a raker and waler system will have to be installed along with shoring to brace the adjacent subway in accordance with NYCTA design and performance guidelines; and
WHEREAS, additionally, the applicant represents that the NYCTA requires monitoring of the tunnel structure during foundation construction; and
WHEREAS, the Subsurface Report supports these assertions and documents the anticipated expenses of the noted supplemental measures; and
WHEREAS, as to the soil contamination, the applicant represents that remedial work will be required due to the industrial character of the historic uses on the lot; and
WHEREAS, the applicant states that three underground storage tanks associated with the former automotive service station located on the site were legally closed in 2006, and that the results of testing that was performed at that time confirmed the presence of elevated mercury and semi-volatile organic compound levels in the soil on the site; and
WHEREAS, the applicant submitted an environmental report and cost estimates documenting the expected testing and remediation of the soil, including the potential inclusion of a vapor barrier, due to its historic use as an automotive service station; and
WHEREAS, based upon the above, the Board finds that the aforementioned unique physical conditions, when considered in the aggregate, create unnecessary hardship and practical difficulty in developing the site in conformance with the applicable zoning regulations; and
WHEREAS, the applicant submitted a feasibility study that analyzed: (1) an as-of-right office development; (2) an as-of-right hotel development; and (3) the proposed hotel development; and
WHEREAS, the applicant concluded that the as-of-right scenarios would not result in a reasonable return, due to the unique physical conditions of the site and the resulting premium construction costs, but that the proposed hotel building would realize a reasonable return and has submitted evidence in support of that assertion; and
WHEREAS, based upon its review of the applicant’s submissions, the Board has determined that because of the subject site’s unique physical conditions, there is no reasonable possibility that development in strict conformance with applicable zoning requirements will provide a reasonable return; and
WHEREAS, the applicant represents that the proposed building will not alter the essential character of the neighborhood, will not substantially impair the appropriate use or development of adjacent property, and will not be detrimental to the public welfare; and
WHEREAS, as to bulk, the applicant notes that the proposed 4.93 FAR complies with the maximum 5.0 FAR permitted for an as-of-right hotel building in the subject zoning district, and that no bulk waivers are requested; and
WHEREAS, the applicant represents that the immediate area is a mix of residential and commercial uses; and
WHEREAS, the applicant notes that the proposed hotel use is permitted as-of-right at and above the second floor and that the subject variance is only necessary for the proposed hotel and retail uses located below the second floor; and
WHEREAS, the applicant states that the proposed hotel use, with ground floor retail, is consistent with the character of the area, which includes many other such uses; and
WHEREAS, in support of the above statements, the applicant submitted a 400-ft. radius diagram, showing the various uses in the immediate vicinity of the site; and
WHEREAS, specifically, the radius diagram showed that there are 13 eating and drinking establishments in the immediate vicinity of the site, including a restaurant located adjacent to the site, at 6 Bond Street, and a restaurant located one block from the site, at 9 Great Jones Street; and
WHEREAS, the radius diagram also reflects that there are several physical culture establishments in the vicinity of the site, including the Great Jones Spa located one block from the site; and
WHEREAS, as noted above, the applicant represents that the proposed spa/fitness center at the sub-cellar level will initially be an amenity only for hotelguests, but that it will eventually be made available to the public through a separate entrance on Lafayette Street, at which point an application will be made pursuant to ZR § 73-36 to operate a physical culture establishment on the site; and
WHEREAS, as to the Community Board’s requested conditions, the applicant provided revised plans showing a landscaped area at the northwest portion of the second floor, and states that the operator will consider limiting the hours of operation and the activities of the outdoor seating area; and
WHEREAS, the Board notes that the applicant must comply with all relevant provisions of the Noise Code; and
WHEREAS, the Board agrees that the character of the area is mixed-use, and finds that the introduction of Use Group 5 and 6 uses below the second floor will not impact nearby conforming uses; and
WHEREAS, the applicant received a Certificate of Appropriateness from the Landmarks Preservation Commission (LPC), dated December 7, 2009; and
WHEREAS, accordingly, the Board finds that this action will not alter the essential character of the surrounding neighborhood nor impair the use or development of adjacent properties, nor will it be detrimental to the public welfare; and
WHEREAS, the Board finds that the hardship herein was not created by the owner or a predecessor in title, but is the result of the site’s unique subsurface soil conditions; and
WHEREAS, the applicant asserts that the request to include uses which would be permitted above the first floor of the building on the first floor and below without any other waivers is the minimum variance; and
WHEREAS, the Board finds that this proposal is the minimum necessary to compensate for the additional construction costs associated with the uniqueness of the site and to afford the owner relief; and
WHEREAS, the Board has determined that the evidence in the record supports the findings required to be made under ZR § 72-21; and
WHEREAS, the project is classified as a Type I action pursuant to 6 NYCRR, Part 617.4; and
WHEREAS, the Board has conducted an environmental review of the proposed action and has documented relevant information about the project in the Final Environmental Assessment Statement (EAS) CEQR No. 08BSA011M dated February 5, 2010; and
WHEREAS, the EAS documents that the project as proposed would not have significant adverse impacts on Land Use, Zoning, and Public Policy; Socioeconomic Conditions; Community Facilities and Services; Open Space; Shadows; Historic Resources; Urban Design and Visual Resources; Neighborhood Character; Natural Resources; Hazardous Materials; Waterfront Revitalization Program; Infrastructure; Solid Waste and Sanitation Services; Energy; Traffic and Parking; Transit and Pedestrians; Air Quality; Noise; Construction Impacts; and Public Health; and
WHEREAS, the EAS determined that there could be potential hazardous materials impacts during construction and occupancy of the proposed hotel due to historical land uses; and
WHEREAS, the New York City Department of Environmental Protection’s (DEP) Bureau of Environmental Planning and Assessment has reviewed the project for potential hazardous materials impacts; and
WHEREAS, the applicant has submitted a hazardous materials sampling protocol prepared by a qualified consultant and including a health and safety plan (“Sampling Protocol”), which has been approved by DEP, and the applicant proposes to test and identify any potential hazardous materials pursuant tothe approved Sampling Protocol and, if such hazardous materials are found, to submit a hazardous materials remediation plan, including a health and safety plan, (as approved by DEP, the “Remediation Plan”) for approval by DEP prior to the commencement of any construction or demolition activities at the site; and
WHEREAS, prior to the issuance of any building permit by DOB for the proposed project that would result in grading, excavation, foundation, alteration, building or other permit which permits soil disturbance, applicant proposes to obtain from DEP either: (A) a Notice of No Objection (“Notice of No Objection”) upon the occurrence of the following: (i) applicant has completed the project-specific DEP approved Sampling Protocol to the satisfaction of DEP; and (ii) DEP has determined in writing that the results of such sampling demonstrate that no hazardous materials remediation is required for the proposed project, or (B) a Notice to Proceed (“Notice to Proceed”) in the event that DEP has determined in writing that: (i) the project-specific Remediation Plan has been approved by DEP and (ii) the permit(s) for grading, excavation, foundation, alteration, building or other permit which permits soil disturbance or construction of the superstructure for the project facilitate the implementation of the DEP approved Remediation Plan; and
WHEREAS, prior to the issuance of any temporary or permanent Certificate of Occupancy by DOB, applicant proposes to obtain from DEP either: (A) a Notice of Satisfaction (“Notice of Satisfaction”) in the event that DEP determines in writing that the DEP approved project-specific Remediation Plan has been completed to the satisfaction of DEP, or (B) a Notice of No Objection in the event that DEP determines in writing that the work has been completed as set forth in the project-specific DEP approved Sampling Protocol and the results of such sampling demonstrate that no hazardous materials remediation is required for the proposed project; and
WHEREAS, no other significant effects upon the environment that would require an Environmental Impact Statement are foreseeable; and
WHEREAS, the Board has determined that the proposed action will not have a significant adverse impact on the environment.
Therefore it is Resolvedthat the Board of Standards and Appeals issues a Type I Negative Declaration, with conditions as stipulated below, prepared in accordance with Article 8 of the New York State Environmental Conservation Law and 6 NYCRR Part 617, the Rules of Procedure for City Environmental Quality Review and Executive Order No. 91 of 1977, as amended, and makes each and every one of the required findings under ZR § 72-21 and grants a variance, to permit, in an M1-5B zoning district within the NoHo Historic District, the construction of a seven-story 50-room hotel building with hotel and retail uses below the level of the second floor, which is contrary to ZR § 42-14, on condition that any and all work shall substantially conform to drawings as they apply to the objections above noted, filed with this application marked “Received January 21, 2010” – ten (10) sheets; and on further condition:
THAT the following shall be the bulk parameters of the proposed building: seven stories, a maximum floor area of 31,910 sq. ft. (4.93 FAR), with an additional 15,259 sq. ft. of floor space located at the cellar and sub-cellar levels, a wall height of 69’-2”, and a total height of 80’-3”;